Scalia’s death could change court on abortion, race, climate

Feb 17, 2016

Photo credit: Getty

By Politico Pro Staff

Justice Antonin Scalia’s death could change the course of history on the contentious social and legal issues pending before the Supreme Court this term, especially in closely divided cases where he was expected to serve as a lynchpin of a conservative majority.

In cases where the eight remaining justices are evenly divided, appeals court rulings would be left to stand, but no precedent would be set for future cases. The justices could also hold cases and leave stays of lower court rulings in place, while awaiting confirmation of a new justice, but it’s unclear if they would do so for nearly a year if the Senate refuses to consider any nominee while President Barack Obama is in office.

Here are policy areas that hang in the balance:


Many Texas abortion clinics could close, an outcome that may have happened anyway with Scalia on the court.

The court next month will hear the most significant abortion case since 1992, when the justices ruled states could legally impose restrictions on abortion that did not put an “undue burden” on access to the procedure. This term’s abortion case, which centers on restrictions Texas placed on providers and clinics, will again test how far states can go to limit abortion.

The court is expected to be divided along familiar partisan lines, with Justice Anthony Kennedy serving as a possible swing vote. A 4-4 decision in the case, Whole Woman’s Health v. Cole, would leave in place a lower court ruling that upheld the restrictions on clinics.

Health care

Religious nonprofits, including charities, schools, colleges and hospitals, may have to live with the decisions of seven appeals courts, which ruled against their challenge to the Affordable Care Act’s contraceptive mandate.

The plaintiffs in Zubik v. Burwell, including the Roman Catholic Archdiocese of Washington and the Little Sisters of the Poor, argue that both the law’s requirement that employers provide female employees with health insurance that includes no-cost access to certain forms of birth control — and the government’s work-around set up for religious nonprofits — violate their religious freedom.

Appeals courts decided the cases against them largely because the administration offered them the work-around the Supreme Court sought in an earlier case, Burwell v. Hobby Lobby, in 2014. The case pits questions of religious liberty against a woman’s right to equal health-care access, and it will be the fourth time the court has considered some aspect of what has come to be known as Obamacare.

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34 comments on “Scalia’s death could change court on abortion, race, climate

  • 1
    fadeordraw says:

    Retired Canadian jurists respectfully dissent from Scalia’s approach, style –
    Sean Fine – JUSTICE WRITER The Globe and Mail Published Monday, Feb. 15, 2016 8:30PM EST

    Not sure if the link will work but the upshot is that these Canadian legals didn’t go for Antonin Scalia’s ridiculing approach to people and ideas, use of sarcasm and adherence to originalism for interpreting the US Constitution. A comment on the article that my attention:
    – ISIS are big fans of originalism, too.

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  • If I am wrong about Heaven and Hell…. and if in fact there turns out to be both, then I will find comfort at least in knowing that I am going to meet Justice Scalia!

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  • First-Sri Srinivasan was appointed to the DC circuit court which has been a feeder for Supreme Court Justices. He was appointed in 2013 with unanimous vote of 97-0.

    Second-the Greens don’t like him because he was a private attorney for fossil fuel companies. So what? That’s what private attorneys do–work for money. HOWEVER he has worked 25 cases before the SCOTUS and spoke with calm intelligence.

    Obama MUST be able to put this third justice in. This is a markedly intelligent man who has been a solicitor general before the Supreme Court. He has no partisan politics and is NOT a theocrat! In some ways, Srinivasan is the anti-Scalia. In his legal arguments and personality, colleagues say, he’s not ideological, flashy, or fiery. Instead, he’s centrist, humble, and even-tempered.

    Every other Supreme is from Harvard or Yale. Sri went to Stanford for his three degrees. And he’s Asian-American! Yeah!!

    Srinivasan can get voted in by this idiotic Tea Party senate. Go for it!

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  • Besides the cases pointed out I want to bring up other cases where Scalia REALLY changed America,

    DC v Miller (2008) and McDonald v Chicago (2010) for the first time stated that the second amendment DID allow guns to be owned by private citizens. Heller was a federal decision. McDonald was for the states.
    Wow! For a Supreme who believed in the sanctity of the ORIGINAL constitution written in 1789 when muskets were the weapons, now folks can own weapons of war! AK-47s and AR-15s. The latter the weapon of choice in recent terrorist murders in Paris and San Bernadino! BTW in many states you don’t even need a gun license or permit to buy an AR-15. It’s called a “long rifle” by the NRA and ANYONE over the age of 18 can buy one for “personal protection.” Just need to keep it in your house or car.” No background check necessary!

    Scalia also led the way for Bush to win the presidency in 2000 despite the fact that Al Gore had more votes.

    Oh let’s not forget Citizens United when this Originalist figured that corporations were people and could contribute millions to campaigns! Hot Dog! Big Pharma, Koch Brothers, and Wall Street could now LEGALLY own politicians!

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  • Helen,
    The 2A does not “allow” anything. It restricts the government from infringing upon in individual’s inalienable rights. The 2A was written because the US has a standing army. The bill of rights exists to “prevent misconstruction or abuse of its powers”; it’s right there in the preamble. Oh, and short barreled shotguns are taxed by the NFA because they have “no military purpose”, or so said the SCOTUS back in 1938; contradicting itself. The supreme court flip flops on guns having no “sporting purpose” or “no military purpose”; they can’t have it both ways.

    I own many “assault rifles” and carry a concealed handgun daily. Richard didn’t notice the bulge on my hip when he was autographing his last book; no harm there. I hope the RD Foundation doesn’t think I’ll be voting for that vile corrupt witch Hillary Clinton due to a justice nomination.

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  • @madengr

    I hope the RD Foundation doesn’t think I’ll be voting for that vile corrupt witch Hillary Clinton due to a justice nomination.

    I hope you place your vote where the support of rational evidence based decision making is highly prized. Someone who’s ideology holds second place to available scientific evidence. I hope you use your vote wisely so that people who think this never hold public office in America, ever again.

    But back to State Board of Ed candidate Bruner. She has the backstory that explains why President Obama is such a softy on LGBT rights. “Obama has a soft spot for homosexuals because of the years he spent as a male prostitute in his twenties. That’s how he paid for his drugs. He has admitted he was addicted to drugs when he was young and he is sympathetic with homosexuals; but he hasn’t come out of the closet about his own homosexual/bisexual background.”

    To cast your vote in support of secular evidence would be in keeping with RDFRS members who aspire to the ideals of the Richard Dawkins Foundation for Reason and Science.

    Your vote should encourage America to catch up what is now the civilized norm for the rest of the world. Universal health care and education. Support of minority rights, especially women’s rights. Support for the separation of church and state. Support for evidence based law enforcement, justice and corrections. Support for the depoliticization of the Supreme Court which currently lessens the value of your democracy. Support of a foreign policy based on ethics and morality instead of self interest.

    All of the above have the support of rational evidence. That would make you a proud member of the RDFRS.

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  • Obama (who I rather like in spite of his many faults) had an opportunity to raise the minimum wage and to get a single payer system. This was when the Democrats controlled the House and Senate. He didn’t. Perhaps he was too busy w/ the economy. But something tells me that he won’t nominate a progressive justice. You know why? Too conservative? I don’t think so. Maybe that’s part of it. The likelihood is that he just doesn’t really give a shit. Cynicism? Cowardice? Hard to say. If he did give a shit he’d nominate someone. He won’t.

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  • In the free Western world, no one should know which way a judge would lean on any issue. It is vital to a thriving democracy that the three pillars of government are fiercely independent of each other. The moment a judge acts politically, your democracy is diminished.

    American Politicians of all colours should restrain themselves from picking political judges. Judges should be selected from the most eminent legal jurists in the land. They should have no political affiliation either real or perceived. A bipartisan committee of Democrats and Republicans who are themselves lawyers and understand the laws, and the not negotiable requirement for the separation of powers must come to a consensus on the most qualified available jurist in the land. That is who should be on the Supreme Court. Not partisan political hacks.

    Americans of all colours should not vote for Senators or Congressman who support the appointment of politically leaning judges. This diminishes your democracy. The Supreme court justices are there to rule on the laws created by Congress, the Senate, the States and the President. They are there to interpret the constitution. Not what their political leanings want it to say, but what the law actually means.

    The Supreme Court is there to protect you from the President and the Congress / Senate should they go rogue. If you fill it with obvious Liberal or Conservative people, your democracy is at risk. The Judge may make a decision based on his political leanings instead of what the law actually saws. Demand an independent Supreme Court.

    When we read reports like this, it is an embarrassment for America.

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  • David # 10

    Under more normal circumstances, David, I would agree with you, but not now, not in in the context of America today, today’s world. American democracy is on the brink of ruin already. Citizens United must be abolished, and we are destroying the environment. I could go on and on.

    A litmus test is essential now. It’s not about politics; it is about survival and sanity.

    Yes, we will be a bit diminished as a (failing) democracy, but I say we should take the risk. We need a democratic, liberal justice in the supreme court.

    Republicanism is no longer a political entity; it is madness.
    If a Republican President is nominated or if a conservative judge is nominated, we are all doomed.

    The moment a judge acts politically, your democracy is diminished.

    I expect a judge to act rationally!

    And if we get another Scalia and a Trump or a Cruz our democracy will not be diminished; it will be annihilated.

    The Republicans are sick assholes. That is reality, and we have to act accordingly. “Fair” or not.

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  • @danielr

    Interesting post Dan.

    If a Republican President is nominated or if a conservative judge is nominated, we are all doomed.

    Regardless of how much you desperately what your team to control the Supreme Court, you mustn’t. The Supreme Court should be the last referee. The last video review of events while the game is on hold. What you are suggesting is exactly what the republicans want to do. It means that the political fangs reaching for the Supreme Court jugular must run deep in the US. Entrenched through time from consistent abuse in judicial appointments.

    It is so dangerous to have a countries Supreme Court politicized. While it might only be marginal in the US, think what happens when the Supreme courts of other countries become political. Anwar Ibrahim in Malaysia. The opposition leader. Constantly be sent to jail from framed charges. Aung Sun Su Chee in Myanmar. Indonesian courts releasing convicted terrorists.

    I know the US is not like this, but by making political appointments, something I gather has been going on for years means you have taken the first step to derail the most important life boat your constitution has put in place.

    I think your post made me realize how politically partisan the US has become. It is Black or White, or is that Red or Blue.

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  • David and Dan

    I think you’re both right. An impartial justice system is the highest goal but the US is in too deep and as Dan says, we are losing ground to the reactionary thugs here. American liberals (centrists to everyone else) are desperate to push back against the very people who think Scalia was the best Justice we had.

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  • I don’t know. In an ideal world (in other words, not ours) the judges would all be impartial, non-political, but in the real world, which is the only one I care about, they will never be, have never been. They will always make decisions based on their own views or political affiliations or orientation. We need to rethink this unrealistic expectation of detachment and purity; it has never existed; at least I don’t think it has. So let’s be honest and get the best person we can on the Supreme Court, someone who understands the constitution and who is a democrat.
    No judge is impartial, ever. That was explained to me once – by a judge.

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  • @danielr

    In an ideal world (in other words, not ours) the judges would all be impartial, non-political..

    In Australian and the UK, they are. I suspect in most of the EU countries as well. The US is an anomaly due to years of political bench stacking. It has to stop. Your view on judges in general as to overall impartiality is tainted from being in the location you are. If you look out your window, all you see are political judges. When I look out my window, I see high integrity impartial judges.

    Tough gig living in America. It’s been off the rails since WW2. It will need 50 years of enlightenment to catch up with to the baseline civilized norm.

    And I note LaurieB’s comments which echo Dan’s. The appointment of a judge is now firmly a political issue where Americans of all colours want to have “Their Guy” get the nod. The hairs on the back of my neck while not standing erect are certainly nervous about the direction of this type of thinking.

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  • @David R Allen #15

    Feb 18, 2016 at 4:07 pm

    nervous about the direction of this type of thinking.

    I don’t blame you a bit for being nervous. Partisan push and shove is all we know with our appointed judges. Supreme court is high stakes push and shove. I’m willing to bet that most Americans don’t even know that there is any other way. We live in a bubble over here. A sad, sad bubble.

    I can’t even say that I hope for pure ethical justice from these courts. It’s mostly about winning and losing at the end of the day.

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  • As I posted here..

    … Every civilised democracy ought to be able to expect its judges to be impartial and leave their politics at home when they’re in court and for politicians to at least put country first and party second.

    Unfortunately America is so partisan and divided this sort of civilised behaviour appears to be impossible and has been for a long time. So While I agree with David Allen in principle, in practice America desperately needs a Democrat biased Supreme Court and a Democrat controlled House and Senate if it is to ever move forward.

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  • @ Arkrid
    @ Laurie
    @ David

    Well said, Arkrid. You are the voice of reason.
    I would be in favor of the nomination of a conservative judge if I felt I could trust him to follow the law with perfect impartiality. My assumption is that neither the democrats or (nor?) the republicans can be relied upon to do that. That is why I am hoping that a liberal judge will be nominated. If they are going to be “political” as you say, then let them be liberal. Of course my counterparts on the right feel the same way about it; why else would they want a conservative judge?
    We do all need a hug. Laurie, can I have a virtual hug?
    By the way, Daniel means Judge!
    Laurie means laudable and regal, according to Petrarch.
    Arkrid means…

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  • @laurieb

    A tweet from a presidential candidate.

    I think the rational people of America need a hug. This is chilling. –David Allen

    Just looked at it. Is that real? How do we know that was sent by Bush? Whether it is or isn’t authentic, we are still up against it, like never before – and I’m still waiting for my virtual hug. We all need a little e-TLC at times.

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  • Dan, It is real. Bush toured the factory and got a free gun. According to enthusiasts, its a foreign made gun to boot.
    If Trump wins through some weird twist, we are gonna need a new home.

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  • Dan,

    Good point about the verification thing, my bad. I hate twitter and can’t possibly go about verifying who sent what!

    Here’s the virtual hug though. 🙂

    In fact, let’s make it a group hug.

    We need to start a utopian community. What would it look like?

    By the way. Regal is definitely not descriptive of moi. In fact, I aim to be the opposite. Simple pleasures, nature, grounded, egalitarian, these are descriptions that make me happy.

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  • Dan #11
    Feb 18, 2016 at 1:25 am

    I expect a judge to act rationally!

    Unfortunately, in the traditions of theistic obfuscation, Catholics have their own theistic definition of “rationality”!
    “10. Not only can faith and reason never be at odds with one another but they mutually support each other, for on the one hand right reason established the foundations of the faith and, illuminated by its light, develops the science of divine things; on the other hand, faith delivers reason from errors and protects it and furnishes it with knowledge of many kinds.” (Vatican Council I)

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  • 26
    Cairsley says:

    To Alan4discussion #24

    . . . faith delivers reason from errors and protects it and furnishes it with knowledge of many kinds.

    That is to say the Roman Catholic Church is quite happy with reason, so long as it is used only according to the dictates of officially approved superstition.

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  • Cairsley #26
    Feb 20, 2016 at 8:38 am

    . . . faith delivers reason from errors and protects it and furnishes it with knowledge of many kinds.

    That is to say the Roman Catholic Church is quite happy with reason, so long as it is used only according to the dictates of officially approved superstition.

    Yes! The theistic “reasoning” has to be fallaciously circular – starting with doctrines and dogmas as its initial premises and then cherry picking compatible bits from the evidence while rejecting any refuting evidence!

    Begging the Question / Circular Reasoning

    This process is usually accompanied by an assertion that the dogma based “conclusions” are “supported by logic” / refutations are “illogical”!

    It is part of the “required damage” to rational thinking processes, caused by indoctrination.

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  • Laurie B (#23)

    Utopian community.

    I laughed when I read that. You’re very funny.
    I was just saying that Laurie (or Laura) means laudable and regal. That’s just a fact. (This is a science and reason site. Facts matter!)
    My idea of a utopian community would be one where I could have all the candy I want and all the toys I want.
    And it would be secular too.

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  • @danielr

    Toys and candy? That’s it? Well then why don’t you get yourself a little utopia there in the comfort of your own home?! Jeeze Dan, don’t be so easy.

    My Utopia will be not only secular but completely atheistic, as diverse as possible, located between MIT and Harvard, and based strongly on the Prime Directive from Star Trek. They broke it on every show but we won’t do that!

    Self sufficiency is a goal and tasks will be shared equally. I’m not sure what to do about pair bonding. It’s a bag of worms really.

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  • I see this apology for an arm of government, is still taking a dog-in-manger attitude to its responsibilities to provide effective services!

    The US Senate will block a vote on any Supreme Court nominee from President Barack Obama, the Republican Majority Leader in the chamber has warned.

    Sen Mitch McConnell acknowledged Mr Obama’s right to propose a replacement for Justice Antonin Scalia, who died earlier this month.

    But he stressed that Republicans controlling the Senate would also exercise their rights.

    Apparently they see their “rights” as putting partisan political interests, before the “rights” of the people to have a fair and functional legal system!
    So much for any competence in assessing the merits and qualifications of proposed candidates when individuals are actually proposed!

    Meanwhile, the Democrat Minority Leader of the Senate, Harry Reid, described Sen McConnell’s stance on the issue as “obstruction on steroids”.

    According to the constitution, the president nominates justices to the court while the Senate uses its “advice and consent” powers to confirm or reject that person.

    What an absolute waste of space these Republican senators are!!!

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  • The matter of the attempted Texas restrictions, has reached the Supreme Court.
    The US Supreme Court has heard arguments in a controversial abortion case that may have implications for millions of women across the country.

    It considered a challenge to a Texas law that imposes strict regulations on abortion doctors and clinics.

    But the court’s eight justices so far appear divided on the hot button issue.

    It is the court’s first major abortion case in decades and the first big case since its most conservative justice, Antonin Scalia, died in February.

    His death leaves the court evenly split between liberals and conservatives, with all eyes on Justice Anthony Kennedy who holds a swing vote on the highly charged issue.

    Wednesday’s case focuses on a part of the law that has yet to go into effect requiring abortion clinics in Texas to have hospital-grade facilities – a requirement that would require costly upgrades at many providers’ offices.

    Opponents to the law say it would leave just 10 abortion clinics in America’s largest state, making it harder for women there to obtain the procedure. But the law’s proponents argue it is necessary to protect women’s health.

    Justices at the court must decide whether such restrictions on clinics hampers a woman’s constitutional right to an abortion.

    But after 90 minutes of arguments, they failed to show a unified front on the issue. In their questions, liberal judges voiced hostility towards the law while the conservatives appeared more sympathetic.

    Justice Kennedy did not give a clear indication of which way he stood, however he did suggest sending the case back to the lower court to allow more evidence to be gathered on the law’s impact.

    A ruling is not expected until the end of June, although experts say this is likely to end in deadlock with a 4-4 split in the case. Without a majority verdict, the Texas law would be implemented but the court will not set a nationwide legal precedent.

    Abortion is a highly disputed issue in the US, and is a hot topic in the presidential election, with all of the Republican candidates backing bans on the procedure.

    The Supreme Court legalised abortion more than 40 years ago in a landmark ruling, but some states have since endeavoured to pass laws placing restrictions on a woman’s ability to terminate a pregnancy.

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  • A very solid moderate nominee, which of course means it will be a circus during confirmations. If he doesn’t make it through it’s thought that Obama will nominate Sri Srinivasan, who would be the first Asian/Hindu candidate. The interesting thing about him is he was confirmed 97-0 by the Senate in 2013, which would make a refusal to consider him, as Majority Leader McConell has repeatedly said, politically suicidal.

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